41 C.F.R. § 60-741.3 Exceptions to the definitions of “individual with a disability” and “qualified individual with a disability.”
Title 41 - Public Contracts and Property Management
(a) Current illegal use of drugs—(1) In general. The terms individual with a disability and qualified individual with a disability do not include individuals currently engaging in the illegal use of drugs, when the contractor acts on the basis of such use. (2) “Drug” defined. The term drug means a controlled substance, as defined in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812). (3) “Illegal use of drugs” defined. The term illegal use of drugs means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act, as updated pursuant to that act. Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law. (4) Construction. (i) Nothing in paragraph (a)(1) of this section shall be construed to exclude as an “individual with a disability” or as a “qualified individual with a disability” an individual who: (A) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in the illegal use of drugs; (B) Is participating in a supervised rehabilitation program and is no longer engaging in such use; or (C) Is erroneously regarded as engaging in such use, but is not engaging in such use. (ii) In order to be protected by section 503 and this part, an individual described in paragraph (a)(4)(i) of this section must satisfy the requirements of the definition of qualified individual with a disability. (5) Drug testing. It shall not be a violation of this part for the contractor to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in paragraphs (a)(4)(i)(A) and (B) of this section is no longer engaging in the illegal use of drugs. (See §60–741.24(b)(1).) (b) Alcoholics—(1) In general. The terms individual with a disability and qualified individual with a disability do not include an individual who is an alcoholic whose current use of alcohol prevents such individual from performing the essential functions of the employment position such individual holds or desires or whose employment, by reason of such current alcohol abuse, would constitute a direct threat to property or to the health or safety of the individual or others. (2) Duty to provide reasonable accommodation. Nothing in paragraph (b)(1) of this section shall relieve the contractor of its obligation to provide a reasonable accommodation for an individual described in paragraph (b)(1) of this section when such an accommodation will enable the individual to perform the essential functions of the employment position such individual holds or desires, or when the accommodation will eliminate or reduce the direct threat to property or the health or safety of the individual or others posed by such individual, provided that such individual satisfies the requisite skill, experience, education and other job-related requirements of such position. (c) Contagious disease or infection—(1) In general. The terms individual with a disability and qualified individual with a disability do not include an individual who has a currently contagious disease or infection and who, by reason of such disease or infection, would constitute a direct threat to the health or safety of the individual or others or who, by reason of the currently contagious disease or infection, is unable to perform the essential functions of the employment position such individual holds or desires. (2) Duty to provide reasonable accommodation. Nothing in paragraph (c)(1) of this section shall relieve the contractor of its obligation to provide a reasonable accommodation for an individual described in paragraph (c)(1) of this section when such an accommodation will enable the individual to perform the essential functions of the employment position such individual holds or desires, or when the accommodation will eliminate or reduce the direct threat to the health or safety of the individual or others posed by such individual, provided that such individual satisfies the requisite skill, experience, education and other job-related requirements of such position. (d) Homosexuality or bisexuality. The term impairment as defined in this part does not include homosexuality or bisexuality, and therefore the term individual with a disability as defined in this part does not include an individual on the basis of homosexuality or bisexuality. (e) Other conditions. The term individual with a disability does not include an individual on the basis of: (1) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; (2) Compulsive gambling, kleptomania, or pyromania; or (3) Psychoactive substance use disorders resulting from current illegal use of drugs.
Title 41: Public Contracts and Property Management
PART 60–741—AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS OF CONTRACTORS AND SUBCONTRACTORS REGARDING INDIVIDUALS WITH DISABILITIES
Subpart A—Preliminary Matters, Equal Opportunity Clause
§ 60-741.3 Exceptions to the definitions of “individual with a disability” and “qualified individual with a disability.”
